Permissible limitations on freedom to manifest religion or belief

Under article 18 of the ICCPR, any actions which fall within the four types of manifestation of belief (worship, observance, teaching and practice) can, in certain circumstances, be subject to limitation by the State. The freedom to manifest religion in sub-paragraph 18(1) is qualified by the limitations set out in sub-paragraph 18(3), including those which are ‘necessary to protect…the fundamental rights and freedoms of others.’

These limitations can apply whether the right is exercised by an individual or by an organisation. It is apparent from article 18(3) that the recognition in human rights law of the need for a level of autonomy for religious communities does not automatically extend to protect from interference every action which is or might be taken by a religious institution.

The need to respect the autonomy of religious communities precludes the State from prohibiting internal religious practices ‘merely because they do not coincide with current perceptions of human rights’ (1), as ‘[w]ithout respect for the differences of religious communities from general secular behaviour, pluralism would be an empty word.’ (2) However the freedom to manifest one’s religion, whether exercised by an individual or a religious organization, ‘must be exercised with due regard for the rights and freedoms of others and within the confines of the general interest’. (3) The European Court has affirmed that when considering the actions of religious organisations, courts must conduct a balancing exercise to determine whether the rights of those affected by their actions have been violated (4).

In a pluralistic society, it must be recognized by persons or organisations asserting their freedom of belief and expression that the same freedom attaches to others who may have contrary beliefs, and the right equally protects that other person’s right to hold those different beliefs and to live in accordance with them.(5) It follows that the manifestations of a particular belief may legitimately be limited where they threaten to destroy the autonomy of others or threaten other aspects of the social order. (6)

The fact that the freedom to manifest religious beliefs cannot be absolute in a pluralistic society has been recognised by, for example, the Catholic Church. In 1965, Pope Paul VI proclaimed the Second Vatican Council’s Declaration on Religious Freedom (Dignitatis Humanae) (7). In that Declaration it is expressly recognised that the right of religious communities to ‘govern themselves according to their own norms’ is subject to the ‘just demands of public order’. It was also acknowledged by the Second Vatican Council in the Declaration that there must be limitations on the exercise of the right to religious freedom in any society, when such exercise may affect others. The Vatican Declaration states:

The right to religious freedom is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility.

Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion. It is the special duty of government to provide this protection…Its action is to be controlled by juridical norms which are in conformity with the objective moral order. These norms arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights, also out of the need for an adequate care of genuine public peace, which comes about when men live together in good order and in true justice, and finally out of the need for a proper guardianship of public morality.

These matters constitute the basic component of the common welfare: they are what is meant by public order.

More recently, in 1991 Pope John Paul II, although of the view that the right to religious freedom is ‘not merely one human right among many others’ but rather is the ‘most fundamental’ right, emphasised that:

freedom of conscience does not confer a right to indiscriminate recourse to conscientious objection. When an asserted freedom turns into licence or becomes an excuse for limiting the rights of others, the State is obliged to protect, also by legal means, the inalienable rights of its citizens against such abuses (8).

Accordingly, when a person’s or an organisation’s manifestation of religious beliefs affects the rights of other persons, it is legitimate for the State to try to balance the protection of these competing rights. To accept this proposition is not to suggest that services provided by religious individuals are a less important part of their religious identity than their attendance at a place of worship. As the European Court has recognised, ‘[b]earing witness in words and deeds is bound up with the existence of religious convictions’ (9). A person’s religious views can of course influence all aspects of their behaviour, both in their private life and in their professional capacities. However, at the point at which a person’s actions, which they maintain are based upon religious beliefs, impact on the rights of others, in order to appropriately resolve the conflict of rights, there needs to be an assessment of what is at stake for each person involved.

2. G Robbers, ‘Church Autonomy in the European Court of Human Rights- Recent Developments in Germany’ in Journal of Law and Religion (26) (2010-2011) 281, 306.

3. van de Vyver, cited above

4. See, for example, the balancing act conducted by the European Court in Obst v Germany and Schuth v Germany. These cases concerned employees who were dismissed from a position as director of public relations for Europe of the Mormon Church, and a position as an organist and choirmaster at the Catholic Church, respectively, for committing adultery, both of whom claimed a violation of their right to privacy under article 8. Different circumstances in the two cases led to differing results.